State ex rel. Moran v. Ziegler

• Decision Date: 06 June 1978
• Docket Number: No. 14130,14130
• Citation: 244 S.E.2d 550,161 W.Va. 609
• Parties: STATE ex rel. Charles MORAN v. Robert B. ZIEGLER, Judge, etc., et al.
• Court: West Virginia Supreme Court

Page 550

244 S.E.2d 550

161 W.Va. 609

STATE ex rel. Charles MORAN v. Robert B. ZIEGLER, Judge, etc., et al.

No. 14130.

Supreme Court of Appeals of West Virginia.

June 6, 1978.

Syllabus by the Court

A lawyer's initial contact with an accused who seeks to retain the lawyer for his defense may give rise to the appearance of a conflict of interest when the same lawyer later appears as a private prosecuting attorney in the criminal prosecution of the accused for the same offense; such appearance of a conflict of interest is ground for the disqualification of the private prosecuting attorney upon timely motion by the accused.

S. J. Angotti, David L. Solomon, Morgantown, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David F. Greene, Asst. Atty. Gen., Charleston, for respondents.

NEELY, Justice:

In this action the relator, Charles Moran, seeks a writ of prohibition against Robert B. Ziegler, Judge of the Circuit Court of Harrison County, Edmund Matko, Prosecuting Attorney of Harrison County, and Jerald E. Jones, Private Prosecuting Attorney. The petition raises questions concerning the propriety of the private prosecutor's participation in the prosecution of the relator on charges of malicious wounding, felonious assault, and accessory before the fact to murder, and the relator seeks to stay the prosecution until the private prosecutor is disqualified. We award the writ.

The issues raised in this proceeding were originally raised in the Circuit Court of Harrison County where the relator filed a motion to disqualify the private prosecuting attorney, Jerald Jones. The trial judge held a hearing on the motion and decided to deny it. The papers filed with that motion and a transcript of the hearing were appended to the respondents' answer and return in this Court, and these materials develop the factual background of the case. According to the relator's testimony at the hearing, he was involved in a shooting incident that took place on the evening of November 3, 1976 in Clarksburg, West Virginia and resulted in the death of one person and the wounding of another. Sometime shortly after the incident, at about 10:30 p. m. or 11:00 p. m. the same evening, the relator called Jerald Jones at his home. The two parties to that telephone call have given substantially different accounts of it.

The relator claims that he asked attorney Jones to represent him in connection with the shooting incident and to meet him at the county jail where he intended to surrender himself to the proper authorities. In the course of seeking Mr. Jones' assistance and arranging the jailhouse meeting, the relator claims to have discussed in great detail all of the facts and circumstances of the shooting itself, as well as the events that led up to it and followed it. Mr. Jones' version of the call is that the relator merely reported he was being sought by the police and asked Mr. Jones to meet him at the county jail because he was apprehensive about possible physical injury on being taken into custody. Mr. Jones emphatically denied that the relator discussed any of the facts or circumstances surrounding the shooting with him.

After receiving the phone call, Mr. Jones did in fact go to the jail, but the relator failed to appear. The relator claims to have called Mr. Jones at the jail to tell him he changed his mind about meeting him there. The relator admits that he did not discuss any details of the shooting incident during this second telephone conversation of the evening. Mr. Jones denied that this conversation ever occurred. His version is that someone else in the jail receive the call and gave Mr. Jones a message from the relator canceling the jailhouse meeting. The discrepancy in the testimony concerning this second phone call is not critically important, inasmuch as no one contends that the relator transmitted any information concerning the shooting incident to Mr. Jones while Mr. Jones was waiting at the jail.

Based on his version of the facts, the relator advances two legal theories which he believes entitle him to relief in this action. First, he argues that under the Code of Professional Responsibility it is a breach of the fiduciary relationship between lawyer and client for the lawyer to appear in a criminal proceeding against the client which will or may require the lawyer to use confidential information obtained by the lawyer in the course of his professional relations with the client. Secondly, the relator argues that the due process right to a fair trial is violated when a private prosecutor aids in prosecuting an accused person who has given the private prosecutor confidential information concerning his involvement in the crime while the accused was under the impression the private prosecutor was representing him in...